Naomi Fowler ■ Whistleblower Rudolf Elmer: legal opinion on latest ruling
We’ve written many times about Swiss whistleblower Rudolf Elmer’s long legal battles against Swiss banking secrecy here, here, here here and here. He’s endured 48 prosecutorial interrogations, 6 months in solitary confinement and 70 court rulings. Of one thing you can be sure – if the Swiss bank he worked for and the Swiss authorities thought it’d be easy to defend banking secrecy and the terrible harm it does, they picked the wrong person to fight. There are those who would have you believe that Swiss banking secrecy is over, but we can assure you that’s far from the case. Switzerland is still ranked number one in our Financial Secrecy Index. Let’s see how it does in our next assessment, due in 2020.
We wrote about the latest court case here. We’re now able to share with you below a detailed legal commentary on this 14-year judicial and media scandal, but that wasn’t possible until Rudolf Elmer had received (in February 2019) the 46-page verdict from the Swiss Federal Supreme Court on its decision of October 10th 2018, where after a public hearing before judges (lasting 150 minutes – without the parties present) the criminal chamber of the Federal Court delivered a groundbreaking judgment in the case of Rudolf Elmer regarding violation of bank secrecy, and other matters by 3 votes to 2. Most importantly, the charge of violation of Swiss bank secrecy alleged against Elmer brought by the Higher Prosecution Office of the Canton of Zurich was rejected by the Federal court and the acquittal of Rudolf Elmer by the High Court of the Canton of Zurich was confirmed.
The Federal Court also upheld the complaint by Rudolf Elmer concerning the imposition of an advance payment for the release of confiscated data and documents as well as the modalities for the return of the personal data of the Elmer family. His complaint against the imposition of three-quarters of the costs of the case, including the investigation costs, in the amount of CHF 320,000, and against the penalty for convictions for document forgery and threatening behaviour, were rejected by the Federal court.
Aspects of the case will continue to the European Court of Human Rights but in the meantime here’s an essay by Swiss law professor Dr Werner Kallenberger, written here in German and also translated into English and available here. He writes that:
“The internationally known, disparaged trial with irresponsibly high material and immaterial completely unnecessary costs could and should have been avoided if the public prosecutor’s offices and courts concerned of the state of Zurich…had correctly adhered to governing laws, doctrine and jurisdiction.
If the public prosecutor’s office in charge of this case and the courts of Zürich had, from the first day of the investigation July 27, 2005, not acted irresponsibly, but had correctly adhered to the governing laws, doctrine and jurisdiction, much of the costs could have been avoided.”
Read on here.